Agreement. for the Promotion and Protection of Investments

Transcription

1 KENYA Treaty Series No.8 (2000) Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Kenya for the Promotion and Protection of Investments Nairobi, 13 September 1999 [The Agreement entered into force on 13 September 1999] Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty March 2000 em

2 AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF THE REPUBLIC OF KENYA FOR THE PROMOTION A..~ PROTECTION OF INVESTMENTS The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Kenya; Desiring to create favourable conditions for greater investment by nationals and companies of one State in the territory of the other State; Recognising that the encouragement and reciprocal protection under international agreement of such investments will be conducive to the stimulation of individual business initiative and will increase prosperity in both States; Have agreed as follows: For the purposes of this Agreement: ARTICLE 1 Definitions (a) "investment" means every kind of asset and in particular, though not exclusively, includes: (i) movable and immovable property and any other property rights such as mortgages, liens or pledges; resources and any territory to which this Agreement is extended in accordance with the provisions of Article 12; Cli) in respect of the Republic of Kenya: Kenya, including the territorial waters and any maritime area situated beyond the territorial waters of Kenya which have been or might in the future be designated under the national laws of Kenya in accordance with international law as an area within which Kenya may exercise rights with regard to the sea-bed and subsoil and the natural resources. ARTICLE 2 Promotion and Protection of Investment (1) Each Contracting Party shall encourage and create favourable conditions for nationals or companies of the other Contracting Party to invest capital in its territory, and, subject to its right to exercise powers conferred by its laws, shall admit such capital. (2) Investments of nationals or companies of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Neither Contra~ting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party. Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party. ARTICLE 3 National Treatment and Most-favoured-nation Provisions (I) Neither Contracting Party shall in its territory subject investments or returns of nationals or companies of the other Contracting Party to treatment less favourable than ~hat which it accords to investments or returns of its own nationals or companies or to mvestments or returns of nationals or companies of any third State. 3

3 (2) Neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their management, maintenance, use, enjoyment or disposal of their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State. (3) For the avoidance of doubt it is confirmed that the treatment provided for in paragraphs (1) and (2) above shall apply to the provisions of Articles 1 to 11 of this Agreement. ARTICLE 4 Compensation for Losses (1) Nationals or companies of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own nationals or companies or to nationals or companies of any third State. Resulting payments shall be freely trai1sferable. (2) Without prejudice to paragraph (l) of this Article, nationals or companies of one Contracting Party who in any of the situations referred to in that paragraph suffer losses in the territory of the other Contracting Party resulting from: (a) requisitioning of their property by its forces or authorities, or (b) destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation, shall be accorded restitution or adequate compensation. Resulting payments shall be freely transferable. ARTICLE 5 Expropriation (I) Investments of nationals or companies or either,contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for a public purpose related to the internal needs of that Party on a non-discriminatory basis and against prompt, adequate and effective compensation. Such compensation shall amount to the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier, shall include interest at a normal commercial rate until the date of payment, shall be made without delay, be effectively realisable and be freely transferable. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph. (2) Where a Contracting Party expropriates the assets of a company which is incoporated pr constituted under the law in force in any part of its own territory, and in which nationals or companies of the other Contracting Party own shares, it shall ensure that the provisions of paragraph (l) of this Article are applied to the extent necessary to guaranteee prompt, adequate and effective compensation in respect of their investment to such nationals or companies of the other Contracting Party who are owners of those shares. 4

4 ARTICLE 6 Repatriation of Investment and Returns Each Contracting Party shall in respect of investments guarantee to nationals or companies of the other Contracting Party the unrestricted transfer of their investments and returns. Transfers shall be effected without delay in the convertible currency in which the capital was originally invested or in any other convertible currency agreed by the investor and the Contracting Party concerned. Transfers shall be made at the rate of exchange applicable on the date of transfer, unless otherwise agreed. ARTICLE 7 Exceptions The provisions of this Agreement relative to the grant of treatment not less favourable than that accorded to the nationals or companies of either Contracting Party or of any third State shall not be constructed so as to oblige one Contracting Party to extend to the nationals or companies of the other the benefit of any treatment, preference or privilege resulting from: (a) any existing or future customs union or similar international agreement to which either of the Contracting Parties is or may become a party; or (b) any international agreement or arrangement relating wholly or mainly to taxation or any domestic legislation relating wholly or mainly to taxation. ARTICLE 8 Reference to International Centre for Settlement of Invesment Disputes (1) Each Contracting Party hereby consents to submit to the International Centre for the Settlement ofinvestment Disputes (hereinafter referred to as "the Centre") for settlement by conciliation or arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States opened for signature at Washington on 18 March 1965 any legal dispute arising betwee~ that Contracting Party and a national or company of the other Contracting Party concerning an investment of the latter in the territory of the former. (2) A company which is incorporated or constituted under the law in force in the territory of one Contracting Party and in which before such a dispute arises the majority of shares are owned by nationals or companies of the other Contracting Party shall in accordance with Article 25(2)(b) of the Convention be treated for tl).e purposes of the Convention as a company of the other Contracting Party. (3) If any such dispute should arise and agreement cannot be reached within three months between the parties to this dispute through pursuit of local remedies or otherwise, then, if the national or company affected also consents in writing to submit the dispute to the Centre for settlement by conciliation or arbitration under the Convention, either party may institute proceedings by addressing a request to that effect to the Secretary-General of the Centre as provided in Articles 28 and 36 of the Convention. In the event of disagreement as to whether conciliation or arbitration is the more appropriate procedure the national or company affected shall have the right to choose. The Contracting Party which is a party to the dispute shall not raise as an objection at any stage of the proceedings or enforcement of an award the fact that the national or company which is the other party to the dispute has received in pursuance of an insurance contract an indemnity in respect of some or all of his or its losses. 5

5 (4) Neither Contracting Party shall pursue through the diplomatic channel any dispute referred to the Centre unless: (a) the Secretary-General of the Centre, or a conciliation commission or an arbitral tribunal constituted by it, decides that the dispute is not within the jurisdiction of the Centre; or (b) the other Contracting Party shall fail to abide by or to comply with any award rendered by an arbitral tribunal. ARTICLE 9 Disputes between the Contracting Parties (1) Disputes between the Contracting Parties concerning the interpretation or application of this Agreement should, if possible, be settled through the diplomatic channel. (2) If a dispute between the Contracting Parties cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal. (3) Such an arbitral tribunal shall be constituted for each individual case in the following way. Within two months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the tribunal. Those two members shall then select a national of a third State who on approval by the two Contracting Parties shall be appointed Chairman of the tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members.,', (4) If within the periods specified in paragraph (3) of this Article the necessary appointments have not been made, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make any necessary appointments. If the President is a national of either Contracting Party or if he is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. 'If the Vice-President is a national of either Contracting Party or ifhe too is prevented from discharging the said function, the Member of the International Court of Justice next in seniority who is not a national of either Contracting Party shall be invited to make the necessary appointments. (5) The arbitral tribunal shall reach its decisio.n by a majority of votes. Such decision shall be binding on both Contracting Parties. Each Contracting Party shall bear the cost of its own member of the tribunal and of it~ representation in the arbitral proceedings; the cost of the Chainnan and the remaining costs shall be borne in equal parts by the Contracting Parties. The tribunal may, however, in its decision direct that a higher proportion of costs shall be borne by one of the two Contracting Parties, and this award shall be binding on both Contracting Parties. The tribunal shall determine its own procedure. ARTICLE 10 Subrogation (1) If one Contracting Party or its designated Agency ("the first Contracting Party") makes a payment under an indemnity given in respect of an investment in the territory of the other Contracting Party ("the Second Contracting Party"), the second Contracting Party shall recognise: (a) the assignment to the first Contracting Party by law or by legal transaction of all the rights and claims of the party indemnified; and (b) that the first Contracting Party is entitled to exercise such rights and enforce such claims by virtue of subrogation, to the same extent as the party indemnified. 6

6 (2) The first Contracting Party shall be entitled in all circumstances to the same treatment in respect of: (a) the rights and claims acquired by it by virtue of the assignment, and (b) any payments received in pursuance of those rights and claims, as the party indemnified was entitled to receive by virtue of this Agreement in respect of the investment concerned and its related returns. (3) Any payments received i~ non-co~vertible currency by ~he first Contracting Part~ in pursuance ofthe rights and clanns acquired shall be freely available to the first ContractIng Party for the purpose of meeting any expenditure incurred in the territory of the second Contracting Party. ARTICLE 11 App6cation of other Rules If the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to the present Agreement contain rules, whether general or specific, entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement. ARTICLE 12 Territorial Extension At the time of signature of this Agreement, or at any time thereafter, the provisions of this Agreement may be extended to such territories for whose international relations the Government of the United Kingdom are responsible as may be agreed between the Contracting Parties in an Exchange of Notes. ARTICl-E 13 Entry into Force This agreement shall enter into force on the date of signature. ARTICLE 14 Duration and Termination This Agreement shall remain in force for a period of ten years. Thereafter it shall continue in force until the expiration of twelve months from the date on which either ~ontracting Party shall have given written notice of termination to the other. Provided that In r~spec~ of investments made whilst the Agreement is in force, its provisions shall continue In effect with respect to such investments for a period of twenty years after the date?f termination and without prejudice to the application thereafter of the rules of general International law. 7

7 In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement. Done in duplicate at Nairobi this Thirteenth day of September For the Government of the United Kingdom of Great Britain and Northern Ireland: For the Government of the Republic of Kenya: JEFFREY JAMES CBOKEMO ISBN Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty s Stationery Office